NCJ Number
60928
Journal
Loyola University Law Journal Volume: 9 Issue: 1 Dated: (FALL 1977) Pages: 227-247
Date Published
1977
Length
21 pages
Annotation
AN ANALYTICAL FRAMEWORK IS PROPOSED TO RESOLVE THE DICHOTOMY BETWEEN THE LEGAL STATUS OF USING ELECTRONIC TRACKING DEVICES WITHOUT A WARRANT AND THE INABILITY OF COURTS TO ARTICULATE RELEVANT PRIVACY CONSIDERATIONS.
Abstract
GOVERNMENT ABUSE OF PRIVACY INTERESTS THROUGH PATENTLY ILLEGAL USE OF ELECTRONIC DEVICES, PUBLIC FEARS ABOUT THE ABRIDGEMENT OF CONSTITUTIONAL PRIVACY RIGHTS, AND LEGISLATIVE ACTION MOVED COURTS TO OVERCOMPENSATE IN RULINGS INVOLVING LAW ENFORCEMENT TECHNOLOGY AND PRIVATE INTERESTS. THE FORMULA ESTABLISHED BY THE U.S. SUPREME COURT IN KATZ V. UNITED STATES (1967) HAS BECOME THE FOUNDATION FOR LEGAL ANALYSIS IN CASES INVOLVING PRIVACY CONSIDERATIONS. THIS FORMULA STATES THAT AN INDIVIDUAL IS ENTITLED TO BE FREE FROM UNREASONABLE GOVERNMENT INTRUSION WHEN HE OR SHE MAY HARBOR A REASONABLE EXPECTATION OF PRIVACY. THE USE OF PRIVACY, HOWEVER, AS AN ANALYTICAL TOOL LACKS DISCRIMINATORY, DESCRIPTIVE, AND PREDICTIVE QUALITIES. FURTHER, THE QUESTION OF WHETHER A PARTICULAR GOVERNMENT ACTIVITY CONSTITUTES A SEARCH IS AN IMPORTANT ONE TO BE ANSWERED SINCE A FUNDAMENTAL DIRECTIVE OF THE FOURTH AMENDMENT UNDER KATZ IS THE PROHIBITION AGAINST UNREASONABLE INVASIONS OF AN INDIVIDUAL'S PRIVACY BY GOVERNMENT. THE CONCEPT OF SEARCH IS EASILY DEFINED AND IDENTIFIED WHEN PROPERTY INTERESTS ARE INVOLVED, BUT IT BECOMES MORE ELUSIVE WHEN PRIVACY INTERESTS ARE JEOPARDIZED. COURTS DISAGREE ON WHETHER THE USE OF ELECTRONIC TRACKING DEVICES REPRESENTS A SEARCH WITHIN THE MEANING OF THE FOURTH AMENDMENT AND WHETHER A WARRANT IS REQUIRED. THIS CONFLICT ALSO EXISTS AMONG AUTHORITIES WITH REGARD TO ELECTRONIC SURVEILLANCE. THE NEED FOR DIRECTION IS DEMONSTRATED BY DIVERGENT PATHS TAKEN BY COURTS IN THEIR EFFORTS TO FRAME AND RESOLVE THE ISSUE OF THE CONSTITUTIONALITY OF WARRANTLESS BEEPER USE BY GOVERNMENT AGENTS IN TRACKING AUTOMOBILES. INDIVIDUAL INTERESTS RELEVANT TO THE INSTALLATION AND MONITORING OF ELECTRONIC BEEPERS MUST BE EXAMINED TO DETERMINE IF THESE INTERESTS ARE PRIVATE. IF SUCH INTERESTS CANNOT BE JUDICIALLY RECOGNIZED AS INTIMATE TO PERSONAL IDENTITY, THE USE OF ELECTRONIC BEEPERS IS CONSTITUTIONALLY PERMISSIBLE. WHEN ELECTRONIC BEEPERS ARE USED TO TRACK VEHICLES, RELEVANT INDIVIDUAL INTERESTS ARE THE LOCATION AND MOVEMENT OF TRACKED SUBJECTS WHILE TRAVELING ON PUBLIC HIGHWAYS. THESE INTERESTS ARE NOT PRIVATE SINCE THEY ARE NOT GERMANE TO INTIMACIES OF PERSONAL IDENTITY. HENCE, THE USE OF BEEPERS TO TRACK AUTOMOBILES SHOULD NOT BE CONSIDERED A SEARCH. WHEN BEEPERS ARE USED TO ENABLE GOVERNMENT AGENTS TO ACQUIRE INFORMATION NOT PUBLICLY AVAILABLE, THE QUESTION OF THE INTIMACY OF THE INFORMATION ACQUIRED MUST BE JUDICIALLY RESOLVED. CASE LAW IS CITED. (DEP)